Cape Verde: a taste of things to come

Cape Verde is an island state formed by ten islands of volcanic origin, located in the tropical north-western Atlantic Ocean, on the African continent, 500km off the coast of Senegal. With landscapes varying from dry plains to high active volcanoes with cliffs rising steeply from the ocean, islands in the east are arid and only sparsely settled to exploit their extensive salt deposits, while the more southerly ones receive more precipitation and support larger populations, but agriculture and livestock grazing have impacted the soil fertility and vegetation.

Despite, at first glance, appearing to be scarce in natural resources due to its inherent aridity, the archipelago’s geographical, geologic, and climatic characteristics allow the production of unique products (mainly foodstuff and beverages) that provide its habitants with a valuable inheritance, that, under certain requirements, may be passible of protection via designations of origin or geographical indications.

Notwithstanding these characteristics, which may be considered a favourable starting point to develop unique products, the entities’ attentiveness in protecting the singularity of their national products by means of protection via designations of origin or geographical indication has received tiny expression in Cape Verde, when compared to other IP rights, such as trademarks and patents.

This may be related to the little information local producers had about the existence of legal regulations to protect and confer ownership over their products by means of registration through designations of origin and geographical indications.

The Cape Verdean Patent and Trademark Office (PTO) had an important role in this matter, raising awareness among entities as to the importance of protecting products with specific geographical origins and qualities that they possess because of their location.

People have therefore become more conscious that, if designations of origin and geographical indications are registered, they become an industrial property right, which gives legitimate users the possibility to react against improper and abusive uses in products that discredit them, adding value to products, producers and to the region itself.

The PTO’s work proved itself fruitful as 2018 was the milestone of this IP right in Cape Verde, with the filing for registration of the first designation of origin “chã das caldeiras vinho do fogo” (wine from the island of Fogo). Its vineyards are cultivated on the volcano's slopes, at a variable altitude of 1,500 and 2,000 meters, with no need for irrigation (depending on the scarce precipitation in July and September) or chemical fertilisers.

In contrast to regular vineyards, its grapevines are low and do not follow an ordered crop. Further, all stages—from cultivation to bottling—occur on the island. The wine’s taste completely depends on the particularities of this geography, namely the microclimate and volcanic soil, which is rich in animal manure, and the human resources applied. More recently, in 2020, designation of origin for Monte Vaca (under spirit beverage, grog) has been filed for registration in Cape Verde.

Relying on its legal framework in Cape Verde, designations of origin and geographical indications correspond to a sui generis system of IP rights separate from trademarks right or any other IP rights, as it is regulated under specific provisions (ie, articles 214 to 223 of the IP Code).

"(...) the archipelago’s geographical, geologic, and climatic characteristics allow the production of unique products (mainly foodstuff and beverages) that provide its habitants with a valuable inheritance, that, under certain requirements, may be passible of protection via designations of origin or geographical indications."

Not being a signatory of regional or international agreements on the subject, the available route of protection is the national one. It is, however, important to highlight that the Cape Verdean Parliament this January has approved the accession of Cape Verde to the Geneva Act of Lisbon on designations of origin and geographical indications and its implementation is to occur in the near future.

As per article 216, an application for registration of this IP regimen should contain a delimitation of the geographical area within which the product identified by the appellation of origin or geographical indication is produced; a description of the product’s characteristics, quality, or reputation; and standards of production with which the holders should conform. These elements shall be gathered in a document called the “product specification”.

As major features, it is to note that these are: (i) rights constituted via registration; (ii) collective rights that belong to all producers in a (iii) delimited geographical area, who comply with the (vi) specific conditions of production for the product; (v) territorial rights, as an application for registration must be filed in the country in which protection is sought; and (vi) potentially unlimited in time, not being necessary to pay any official maintenance or renewal fees.

The term “potentially” is used as the right only ceases to exist in the event the product's characteristics are extinguished or if the geographical area at stake ceases to exist. Additionally, as per article 223 of the IP Code, registrations shall lapse at the request of any interested party if the designation of origin or geographical indication becomes, according to fair, ancient and established usage of the economic activity, simply the generic of a manufacturing system or a specific type of product.

Regarding the applicable terminology, the IP Code provides for two distinct legal concepts: (i) designation of origin (henceforth “DO”), marked by cumulative requirements whereby a product is essentially linked to the characteristics of the demarked location, and (ii) geographical indications (henceforth “GI”), with less demanding requirements. These are explained below:

(i) As per the provisions outlined in article 214 of the IP Code, a DO is the name of an island, a region, a specific place or, in exceptional cases, of a country, which designates or identifies a product from that location—the qualities of which are due to its geographical environment, including natural and human factors. Further, the production, transformation and development of the product occur within the delimited geographical area.

(ii) A GI, on the other hand, have less demanding requirements, as the product is only required to possess a reputation, quality or other essential characteristic that is derived from being:

1. produced within the delimited area;
2. transformed within the delimited area; or
3. development within the delimited area

In short: In a DO, the relationship with the region of origin is closer: their qualities and characteristics are due, not only to human factors, but also to natural conditions. It is, therefore, in this environment that the production, transformation, and elaboration of the product must take place.

In a GI, the relationship with the place of origin is more tenuous: it is enough that the reputation or one of several qualities or one of several characteristics can be attributed to the geographical origin, without the influence of natural and human factors. In these cases, it is sufficient that the production, processing, or preparation of the product takes place in the region of origin.

"(...) DO and GI identify a good as originating from a particular place, may be used by all persons who, in that area, produce the good according to the specific standards, cannot be assigned nor licensed to someone outside that place or not belonging to the group of authorised producers."

Besides the negative right obtained by registration, where owners are given the possibility to react against improper and abusive uses in products that discredit them, there are also the spillover effects, for instance:

• Marketing tool for users, as consumers pay increasing attention to the geographical origin of products and care about their specific characteristics and are often prepared to pay more for such products.
• Indicator of quality and authenticity, as the protected goods suggest to consumers that the product will have qualities or characteristic that they may value and that the goods comply with certain parameters of production.
• Foster costumer’s loyalty, as the qualities and reputation have commercial value and represent a valuable tool to differentiate competing goods.
• Development of rural areas, achieved through the income obtained by producers that establish premium prices to the goods, allowing the investment in the production and to the creation of local employment, which ultimately may help to prevent rural exodus.

Besides the possibility of protecting the goods via DO/GI, it is also possible for applicants to protect their goods under trademark law. Both modalities correspond to distinctive signs used to distinguish goods in the marketplace, enabling consumers to link them with its source.

While trademarks identify products as originating from an undertaking and often consist of arbitrary signs that may be used by the owner and be assigned or licensed to anyone, anywhere, as they are linked to an undertaking and not to a particular place; DO and GI identify a good as originating from a particular place, may be used by all persons who, in that area, produce the good according to the specific standards, cannot be assigned nor licensed to someone outside that place or not belonging to the group of authorised producers.

Furthermore, trademarks need to be renewed whereas DO/GI do not. Monte Vaca is an example of IP right protected by both modalities, as it was filed for registration as both a trademark on 2019, under class 33 (grog), as well as a DO in 2020 for grog.

Despite the shy growth of DO and GI in Cape Verde, applications for registration of national entities in Cape Verde are being undertaken and it is expected that, with the upcoming accession of Cape Verde to the Lisbon Agreement, the country will be more visible overseas and DO and GI from international entities will be filed, generating a new dynamic to this sui generis right in the archipelago.

This is a co-published article, which was originally published in the World Intellectual Property Review (WIPR).